State v. Whitehead

2021 Ohio 847

• Court: Ohio Court of Appeals
• Decided: March 18, 2021
• Docket: 109599
• Status: Published

Opinion

[Cite as State v. Whitehead, 2021-Ohio-847.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

STATE OF OHIO, :

Plaintiff-Appellee, : No. 109599 v. :

MARTIN M. WHITEHEAD, :

Defendant-Appellant. :

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED IN PART, REVERSED IN PART, AND REMANDED RELEASED AND JOURNALIZED: March 18, 2021

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-19-639821-A

Appearances:

Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, and Debora Brewer, Assistant Prosecuting Attorney, for appellee.

Edward F. Borkowski, Jr., for appellant.

MARY J. BOYLE, A.J.:

Defendant-appellant, Martin Whitehead, appeals his sentence. He

raises four assignments of error for our review:

1. The trial court erred by sentencing appellant on allied offenses. 2. The record does not clearly and convincingly support the imposition of consecutive sentences.

3. Appellant’s sentence is contrary to law because the trial court failed to properly consider and weigh the relevant statutory factors.

4. Appellant’s sentence is contrary to law because [the] sentence announced at the sentencing hearing is different than the sentence in the journal entry.

After review, we find merit in part to Whitehead’s first assignment of

error and find merit to his fourth assignment of error. We therefore affirm the trial

court’s judgment in part, reverse it in part, and remand for resentencing.

I. Procedural History and Factual Background

Whitehead was indicted on eight counts in May 2019. In January

2020, he pleaded guilty to Counts 1 and 3, rape in violation of R.C. 2907.02(A)(2),

first-degree felonies; Counts 2 and 4, gross sexual imposition in violation of R.C.

2907.05(A)(4), third-degree felonies; Counts 5 and 6, kidnapping in violation of R.C.

2905.01(A)(2) and (A)(4), first-degree felonies; Count 7, disseminating matter

harmful to juveniles in violation of R.C. 2907.31, a fourth-degree felony; and Count

8, illegal use of a minor in nudity-oriented material or performance in violation of

R.C. 2907.323(A)(1), a second-degree felony. The rape and kidnapping counts

carried repeat violent offender specifications. The kidnapping counts also carried

notice of prior conviction specifications, and the kidnapping in Count 6 carried a

sexual motivation specification.

As part of his plea, the parties agreed that the kidnapping counts

would merge, but that the sentences for the remaining counts and the repeat violent offender specifications would not and thus, could be served consecutively.

Whitehead further agreed to not have contact with the minor victim or the victim’s

family.

At the sentencing hearing, the court spoke to the victim in chambers.

The state read a letter from the victim’s mother, and the victim’s father spoke in

court. The state explained that it “laid out” the facts in the sentencing

memorandum. The state emphasized that Whitehead was a stranger to the victim

and “did one of the worst crimes possible to a young individual.” It asked the court

to impose a significant amount of prison time.

According to the state’s sentencing memorandum, Whitehead drove

up to the 11-year-old victim, who was on a skateboard, grabbed the victim and put

the victim in his car. Whitehead drove the victim back to Whitehead’s house and

took the victim into his bedroom. Whitehead showed the victim pornographic

material, digitally penetrated the victim’s anus, and performed oral sex on the

victim. Appellant then fondled the victim before dropping the victim off at a nearby

school parking lot. Whitehead recorded the assault using his cell phone. The

victim’s parents called the police. That same day, police located Whitehead at his

house, and he admitted assaulting the victim. A rape kit administered to the victim

revealed the presence of Whitehead’s DNA.

Defense counsel began by informing the trial court that he was

objecting to “the Reagan Tokes law, for the record, should that come up.” Defense

counsel told the court that “[t]here’s obviously no mitigating this crime. It’s one of the worst forms of the offense.” But defense counsel explained that Whitehead took

responsibility for his actions. Defense counsel further explained that Whitehead was

sexually abused as a child and experienced massive trauma in his life, including the

fact that his father murdered his uncle. Whitehead had also been diagnosed with

schizophrenia (but was found to be competent to testify and sane at the time of the

act). Whitehead apologized to the victim and the victim’s family.

The trial court noted “the defense’s objection to Reagan Tokes.” It

stated that in determining what sentence to impose, it considered “the overriding

principles and purposes of felony sentencing,” which it explained “are to protect the

public from future crime by the defendant or others and to punish the offender using

the minimum sanctions that the court determines accomplishes those purposes

without imposing an unnecessary burden on state or local government resources.”

It further explained that “[t]o achieve these purposes,” it considered “the need for

incapacitation, deterrence, rehabilitation, and providing for restitution” and the

relevant sentencing provisions under R.C. 2929.11, 2929.12, 2929.13, and 2929.19.

The trial court explained:

Mr. Whitehead, you are certainly every parent’s nightmare. You are society’s nightmare. You literally snatched this young boy, on a spring day, off the streets. It’s just evil. There’s no other word for this. In my almost 30 years in criminal justice, this is one of the worst cases I’ve ever heard of. Your rough childhood does not excuse your behavior. The only reason you’re not spending perhaps the rest of your life in prison is because you took some responsibility.

The trial court stated that it was sentencing Whitehead to 11 years for

Count 1, rape; 3 years for Count 2, gross sexual imposition; 11 years for Count 3, rape; 3 years for Count 4, gross sexual imposition; 11 years for Count 5, kidnapping;

11 years for Count 6, kidnapping; 18 months for Count 7, disseminating matter

harmful to juveniles; and 8 years for Count 8, illegal use of a minor in nudity-

oriented material or performance. The trial court ordered that Counts 1, 2, 4, 5, and

8 shall run consecutive to one another and all remaining counts run concurrent to

Count 1, for a total sentence of 36 years in prison.

The trial court made the required findings on the record to impose

consecutive sentences. It stated:

The Court finds it is necessary to punish the offender, certainly protect the public from future crime, and is not disproportionate to the seriousness of the conduct and the danger posed by the defendant; that one or more offenses were committed while offender was awaiting trial or community control sanctions or post-release control; that two or more offenses are part of one or more course[s] of conduct; and the harm caused is so great or unusual that a single prison term would not adequately reflect the seriousness of the conduct. Offender’s criminal history demonstrates that consecutive sentences are necessary to protect the public.

The trial court notified Whitehead that he would be subject to five

years of postrelease control upon his release from prison. The court waived court

costs and fines. The trial court did not mention merger, and mentioned the Reagan

Tokes Act only to note Whitehead’s objection to it.

In the sentencing entry, the trial court explained that the sentence

imposed upon Whitehead “is an indefinite sentence under SB 201 — the Reagan-

Tokes law.” The trial court imposed the same 36-year sentence but also noted that 36 years was Whitehead’s minimum sentence and that the maximum amount of

prison time he could receive was 41.5 years.

The trial court did not mention merger in the sentencing entry and

imposed 11 years for each count of kidnapping. The trial court further ordered,

“Counts 1, 2, 4, 5, and 8 to run consecutive to each other. All other counts to run

concurrent to each other and concurrent to Counts 1, 2, 4, 5, and 8.” It also stated,

“5 years mandatory postrelease control” for Counts 1, 2, 3, 4, 5, 6, 7, and 8. The trial

court advised Whitehead that he would be classified as a Tier III sex offender for

Counts 1, 3, 5, and 6, and a Tier II sex offender for Counts 2, 4, and 8. It is from this

judgment that Whitehead appeals.

II. Allied Offenses

In his first assignment of error, Whitehead argues that the trial court

erred by not addressing the issue of allied offenses of similar import at the

sentencing hearing. He argues that the following offenses should have merged: (1)

the two kidnapping counts, (2) rape and kidnapping, and (3) rape and gross sexual

imposition.

At his plea hearing, the trial court asked the parties about merger.

The state told the trial court, “[I]t’s my understanding, we would agree that the two

kidnapping counts would merge, but I believe the other ones can be stacked.” The

trial court stated that it would determine the maximum sentence that Whitehead

could receive without merger and “then we can talk about merger.” After discussing

the repeat violent offender specifications, the trial court stated: Now, what everybody is talking about, Mr. Whitehead, is merger. What your counsel is going to argue to the court and what the state is stipulating or agreeing to is that the kidnappings would merge. While you’re pleading to two separate offenses, when it comes time for sentencing, they’re going to elect to have you sentenced under only one of them. So that 63 and a half year sentence is going to be reduced down by 11 years potential. So then, obviously, that would be 52 and a half years of potential penalty.

The trial court asked Whitehead if he understood, and Whitehead

replied that he did. That is all that was said about merger at the plea hearing.

After review, we agree with the state that as part of the plea

negotiations, the parties agreed that only the kidnapping counts would merge and

not any of the other offenses. Although the trial court did not specifically ask

Whitehead or his counsel if that is what they understood the plea agreement to be,

the trial court did ask Whitehead if he understood its explanation regarding merger.

Whitehead replied that he did, and Whitehead’s counsel never objected to the state’s

explanation of the plea agreement.

However, no one mentioned merger at the sentencing hearing — not

the trial court, the state, or Whitehead, nor is merger mentioned in the sentencing

entry. Moreover, the trial court imposed an 11-year sentence for each kidnapping

count. Although it ordered one of the kidnapping counts to be served concurrent to

all other counts, Whitehead was still “prejudiced by having more convictions than

are authorized by law.” State v. Underwood, 124 Ohio St.3d 365, 2010-Ohio-1, 922

N.E.2d 923, ¶ 31. We therefore sustain Whitehead’s first assignment of error in part

with respect to merger of the kidnapping counts, but we overrule it in part with

respect to his remaining arguments. Upon remand, the trial court shall merge

Whitehead’s kidnapping counts and permit the state to elect on which count

Whitehead should be sentenced. The counts are under different subsections of the

statute, R.C. 2905.01(A)(2) and (A)(4), and Count 6 contains one more specification

than Count 5.

III. Consecutive Sentences

In his second assignment of error, Whitehead argues that his “36-year

sentence is contrary to law because the record does not clearly and convincingly

support the trial court’s decision to impose consecutive, rather than concurrent,

terms of incarceration.”

R.C. 2953.08(G)(2) states that when reviewing felony sentences, an

“appellate court’s standard for review is not whether the sentencing court abused its

discretion.” Rather, the statute states that if we “clearly and convincingly” find that

(1) “the record does not support the sentencing court’s findings under [R.C.

2929.14(C)(4)],” or that (2) “the sentence is otherwise contrary to law,” then we

“may increase, reduce, or otherwise modify a sentence * * * or [we] may vacate the

sentence and remand the matter to the sentencing court for resentencing.”

The Ohio Supreme Court has explained that when reviewing the

imposition of consecutive sentences, “R.C. 2953.08(G)(2)(a) directs the appellate

court ‘to review the record, including the findings underlying the sentence’ and to modify or vacate the sentence ‘if it clearly and convincingly finds * * * [t]hat the

record does not support the sentencing court’s findings under’” R.C. 2929.14(C)(4).

State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659, ¶ 28, quoting

R.C. 2953.08(G)(2)(a).

R.C. 2929.14(C)(4) requires trial courts to engage in a three-tier

analysis before imposing consecutive sentences. First, the trial court must find that

“consecutive service is necessary to protect the public from future crime or to punish

the offender.” Id. Next, the trial court must find that “consecutive sentences are not

disproportionate to the seriousness of the offender’s conduct and to the danger the

offender poses to the public.” Id. Finally, the trial court must find that at least one

of the following applies:

(a) The offender committed one or more of the multiple offenses while the offender was awaiting trial or sentencing, was under a sanction imposed pursuant to section 2929.16, 2929.17, or 2929.18 of the Revised Code, or was under post-release control for a prior offense.

(b) At least two of the multiple offenses were committed as part of one or more courses of conduct, and the harm caused by two or more of the multiple offenses so committed was so great or unusual that no single prison term for any of the offenses committed as part of any of the courses of conduct adequately reflects the seriousness of the offender’s conduct.

(c) The offender’s history of criminal conduct demonstrates that consecutive sentences are necessary to protect the public from future crime by the offender.

In each step of this analysis, the statutory language directs that the

trial court must “find” the relevant sentencing factors before imposing consecutive

sentences. R.C. 2929.14(C)(4). But “a word-for-word recitation of the language” of the statute is not required. Bonnell at ¶ 29. “[A]s long as the reviewing court can

discern that the trial court engaged in the correct analysis and can determine that

the record contains evidence to support the findings, consecutive sentences should

be upheld.” Id.

Whitehead does not argue that the trial court failed to make the

consecutive-sentence findings, and for good reason because it clearly did. He argues

only that the record does not support consecutive sentences. After reviewing the

record, we disagree. Whitehead abducted an 11-year-old victim riding a skateboard,

took the victim to Whitehead’s home, and digitally raped, fondled, and performed

oral sex on the victim. Whitehead also showed the victim pornographic material

and recorded the entire sexual assault with his cell phone.

Specifically, Whitehead argues that the record does not support the

trial court’s findings that he was “awaiting trial or on probation or postrelease

control at the time of the offenses” under R.C. 2929.14(C)(4)(a) or that his “criminal

history demonstrates that consecutive sentences are necessary to protect the public”

under R.C. 2929.14(C)(4)(c). While Whitehead is correct that the record does not

support trial court’s finding with respect to R.C. 2929.14(C)(4)(a), Whitehead does

have a prior violent-felony offense: robbery with a firearm. This establishes a

“history” of violence. See State v. Jessen, 3d Dist. Auglaize No. 2-18-16, 2019-Ohio-

907, ¶ 17 (one previous offense of violence is sufficient to establish a history of

criminal conduct under R.C. 2929.14(C)(4)(c)). Further, even if we assume for the sake of argument that one prior

violent-felony offense does not establish a history of criminal conduct (although it

clearly does), the trial court also found that “two or more offenses are part of one or

more course[s] of conduct; and the harm caused is so great or unusual that a single

prison term would not adequately reflect the seriousness of the conduct” under R.C.

2929.14(C)(4)(b). There is no question that this finding is supported by the record

due to the multiple sex offenses that Whitehead committed against the young victim.

Because the trial court is required to find that only one of the three factors under

R.C. 2929.14(C)(4)(a), (b), or (c) applies, we find that the record supports the trial

court’s imposition of consecutive sentences.

Accordingly, we overrule Whitehead’s second assignment of error.

IV. R.C. 2929.11 and 2929.12

In his third assignment of error, Whitehead contends that “the trial

court failed to properly consider and weigh” the purposes and principles of felony

sentencing under R.C. 2929.11 and the seriousness and recidivism factors under

2929.12. Because of that, he claims that his sentences are contrary to law.

R.C. 2929.11(A) states that when sentencing an offender for a felony,

the trial court shall be guided by the overriding purposes of felony sentencing, which

are (1) “to protect the public from future crime by the offender and others,” (2) “to

punish the offender,” and (3) “to promote the effective rehabilitation of the offender

using the minimum sanctions that the court determines accomplish those purposes

without imposing an unnecessary burden on state or local government resources.” To achieve these purposes, “the sentencing court shall consider the need for

incapacitating the offender, deterring the offender and others from future crime,

rehabilitating the offender, and making restitution to the victim of the offense, the

public, or both.” Id.

In determining the sentence to impose, a sentencing court is required

to consider the purposes and principles of sentencing pursuant to R.C. 2929.11 and

2929.12. State v. Boczek, 8th Dist. Cuyahoga No. 103811, 2016-Ohio-5708, ¶ 21.

R.C. 2929.11(B) requires the court to impose a sentence that “shall be reasonably

calculated to achieve the three overriding purposes of felony sentencing[.]” Further,

the sentence must be “commensurate with and not demeaning to the seriousness of

the offender’s conduct and its impact upon the victim” and be “consistent with

sentences imposed for similar crimes committed by similar offenders.” Id.

R.C. 2929.12 sets forth a nonexhaustive list of factors that the court

must consider in relation to the seriousness of the underlying crime and likelihood

of recidivism, including “(1) the physical, psychological, and economic harm

suffered by the victim, (2) the defendant’s prior criminal record, (3) whether the

defendant shows any remorse, and (4) any other relevant factors.” State v.

Kronenberg, 8th Dist. Cuyahoga No. 101403, 2015-Ohio-1020, ¶ 26, citing R.C.

2929.12(B) and (D).

However, the trial court is not required to use particular language or

make specific findings on the record regarding its consideration of the factors under

R.C. 2929.11 or 2929.12 before imposing the sentence. Boczek at ¶ 22, citing State v. Wilson, 129 Ohio St.3d 214, 2011-Ohio-2669, 951 N.E.2d 381, ¶ 31. In fact,

“[c]onsideration of the factors is presumed unless the defendant affirmatively shows

otherwise.” State v. Seith, 8th Dist. Cuyahoga No. 104510, 2016-Ohio-8302, ¶ 12,

citing State v. Keith, 8th Dist. Cuyahoga Nos. 103413 and 103414, 2016-Ohio-5234.

Further, “this court has consistently recognized that a trial court’s statement in the

journal entry that it considered the required statutory factors, without more, is

sufficient to fulfill its obligations under the sentencing statutes.” Id., citing State v.

Wright, 8th Dist. Cuyahoga No. 100283, 2014-Ohio-3321. The Ohio Supreme Court

recently reaffirmed this holding in State v. Jones, Slip Opinion No. 2020-Ohio-

6729, ¶ 20.

Before imposing Whitehead’s sentence, the trial court stated that it

considered the purposes and principles of felony sentencing and the relevant

sentencing provisions under R.C. 2929.11, 2929.12, 2929.13, and 2929.19. The trial

court also stated in the sentencing entry that it considered “all required factors of

the law.” Because the trial court was not required to make findings on the record,

we find that the trial court’s statements alone were sufficient to establish that it

considered the relevant sentencing factors under R.C. 2929.11 and 2929.12.

The trial court also explained some of the sentencing factors it

considered, stating that Whitehead was “society’s nightmare,” that what he did was

“evil,” and that in almost 30 years of experience “in criminal justice, this [was] one

of the worst cases” it had seen. Whitehead contends that the trial court failed to take into

consideration “significant mitigation presented to the court,” including the fact that

he accepted responsibility for his actions, suffers from schizophrenia, and

experienced extreme trauma as a child. Whitehead’s counsel included each of these

mitigating factors in his statements to the court. There is nothing in the record to

establish that the trial court did not consider the mitigating factors. Indeed, the trial

court mentioned the fact that Whitehead took responsibility for his actions and that

his “rough childhood does not excuse” his behavior.

Accordingly, we overrule Whitehead’s third assignment of error.

V. Sentencing Entry Different Than Sentencing Hearing

In his fourth assignment of error, Whitehead argues that the trial

court erred when it issued a sentencing entry that imposed a different sentence than

the one announced at the sentencing hearing. Specifically, Whitehead maintains

because the trial court did not sentence him to an indefinite sentence under the

Reagan Tokes Act at the sentencing hearing, but did so in the sentencing entry, this

court should “direct the trial court to issue a nunc pro tunc entry that corrects the

sentencing entry by removing the portion that imposes an indefinite sentence.”

The General Assembly enacted the Reagan Tokes Act in Am.Sub.S.B.

No. 201, which went into effect on March 22, 2019. The Reagan Tokes Act applies

to “qualifying felonies,” which are felonies “of the first or second degree committed

on or after March 22, 2019.” R.C. 2929.144(A). The act requires a sentencing court

that is imposing a prison term for “qualifying felonies of the first or second degree” to impose an indefinite prison term for those offenses. It further specifies that these

indefinite terms will consist of a stated minimum term selected by the sentencing

judge from the range of basic prison terms set forth in R.C. 2929.14(A) “and a

maximum term that is determined” by formulas provided in R.C. 2929.144.

Whitehead committed the acts in the case in May 2019, and thus, the Reagan Tokes

Act applies to his first- and second-degree felonies.

Under the Reagan Tokes Act, there is a presumption that an offender

will be released from prison after the offender has served the minimum prison term

(or aggregate minimum if a trial court imposes consecutive sentences on multiple

offenses). R.C. 2967.271(B). However, the Ohio Department of Rehabilitation and

Correction (“ODRC”) may rebut this presumption and keep the offender in prison if

it determines at a hearing that certain statutorily enumerated factors apply. R.C.

2967.271(C). If the ODRC rebuts the presumption, it may keep the offender in

prison for an additional “reasonable period,” but the additional time “shall not

exceed the offender’s maximum prison term.” Id.

Whitehead pleaded guilty to multiple qualifying felonies and trial

court imposed consecutive sentences. Therefore, Whitehead’s sentence falls under

R.C. 2929.144(B)(2), which states:

If the offender is being sentenced for more than one felony, if one or more of the felonies is a qualifying felony of the first or second degree, and if the court orders that some or all of the prison terms imposed are to be served consecutively, the court shall add all of the minimum terms imposed on the offender under division (A)(1)(a) or (2)(a) of section 2929.14 of the Revised Code for a qualifying felony of the first or second degree that are to be served consecutively and all of the definite terms of the felonies that are not qualifying felonies of the first or second degree that are to be served consecutively, and the maximum term shall be equal to the total of those terms so added by the court plus fifty [percent] of the longest minimum term or definite term for the most serious felony being sentenced.

As relevant to this case, R.C. 2929.19(B)(2)(c) states that the trial

court is required to inform an offender the following relevant notifications about the

offender’s indefinite sentence at the sentencing hearing:

(i) That it is rebuttably presumed that the offender will be released from service of the sentence on the expiration of the minimum prison term imposed as part of the sentence or on the offender’s presumptive earned early release date, as defined in section 2967.271 of the Revised Code, whichever is earlier;

(ii) That the department of rehabilitation and correction may rebut the presumption described in division (B)(2)(c)(i) of this section if, at a hearing held under section 2967.271 of the Revised Code, the department makes specified determinations regarding the offender’s conduct while confined, the offender’s rehabilitation, the offender’s threat to society, the offender’s restrictive housing, if any, while confined, and the offender’s security classification;

(iii) That if, as described in division (B)(2)(c)(ii) of this section, the department at the hearing makes the specified determinations and rebuts the presumption, the department may maintain the offender’s incarceration after the expiration of that minimum term or after that presumptive earned early release date for the length of time the department determines to be reasonable, subject to the limitation specified in section 2967.271 of the Revised Code;

(iv) That the department may make the specified determinations and maintain the offender’s incarceration under the provisions described in divisions (B)(2)(c)(i) and (ii) of this section more than one time, subject to the limitation specified in section 2967.271 of the Revised Code;

(v) That if the offender has not been released prior to the expiration of the offender’s maximum prison term imposed as part of the sentence, the offender must be released upon the expiration of that term. R.C. 2929.144(C) further mandates that the trial court impose the

“maximum term at sentencing as part of the sentence it imposes” under R.C.

2929.14 and shall state the minimum and maximum prison terms in the sentencing

entry.

Besides noting Whitehead’s objection to the Reagan Tokes Act being

applied to his sentence, the trial court failed to mention the act again at the

sentencing hearing. The trial court also improperly told Whitehead at the

sentencing hearing that his “total sentence” was 36 years in prison without

informing Whitehead that 36 years would be the minimum amount of time he would

spend in prison and without calculating Whitehead’s maximum prison term or

informing him of the maximum prison term. It is not sufficient to simply include

this information in the sentencing entry. R.C. 2929.144(C). The trial court also

failed to inform Whitehead of any of the other required notifications set forth in R.C.

2929.19(B)(2)(c).

Accordingly, we find merit to Whitehead’s fourth assignment of error.

However, we will not order the trial court to issue a nunc pro tunc entry imposing

the 36-year prison sentence that it imposed at the sentencing hearing as Whitehead

requests. Rather, we remand for resentencing and instruct the trial court to comply

with the requirements of the Reagan Tokes Act.

We sustain Whitehead’s fourth assignment of error. Judgment affirmed in part, reversed in part, and remanded. Upon

remand, the trial court is instructed to merge Whitehead’s kidnapping counts and

comply with the mandates of the Reagan Tokes Act.

It is ordered that appellee and appellant share costs herein taxed.

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this court directing the

common pleas court to carry this judgment into execution.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27

of the Rules of Appellate Procedure.

MARY J. BOYLE, ADMINISTRATIVE JUDGE

MICHELLE J. SHEEHAN, J., CONCURS; LARRY A. JONES, SR., J., CONCURS WITH SEPARATE OPINION

LARRY A. JONES, SR., J., CONCURRING:

I concur with the majority opinion, but write separately as to the

fourth assignment of error.

At the sentencing hearing, the trial court did not sentence Whitehead

under the Reagan Tokes Act. The sentencing entry did, however. In his fourth

assignment of error, Whitehead contends that because the trial court did not

sentence him to an indefinite sentence under the act at the sentencing hearing, the

sentencing entry should be corrected via a nunc pro tunc entry to remove the indefinite sentence. I agree with the majority that it was “not sufficient to simply

include this information in the sentencing entry.” Majority opinion at ¶ 45. But I

disagree with the majority’s order to remand the case so that the trial court can

comply with the requirements of the Reagan Tokes Act.

In my view, the act is unconstitutional. Specifically, I believe it is

unconstitutional for the Ohio Department of Rehabilitation and Correction

(“DRC”), an executive branch of the government, to solely determine whether

additional prison time should be imposed on a defendant. Allowing that, in my

opinion, violates (1) a defendant’s right to a jury trial; (2) the doctrine of separation

of powers; and (3) a defendant’s right to due process.

In light of the above, I would remand the case to the trial court to issue

a nunc pro tunc entry reflecting what occurred at the sentencing hearing, that is, an

entry without an indefinite sentence under the Reagan Tokes Act.